exv10w5






Exhibit 10.5




EXECUTION VERSION




AMENDMENT NO. 3 TO THE

LOAN AND SECURITY AGREEMENT




Dated as June 2, 2008




     AMENDMENT NO. 3 TO THE LOAN AND SECURITY AGREEMENT (this “Amendment”) by and between
Residential Funding Company, LLC, a Delaware limited liability company, as borrower
(“RFC”), GMAC Mortgage, LLC, a Delaware limited liability company, as borrower
(“GMACM” and together with RFC, each a “Borrower” and collectively, the
“Borrowers”) and GMAC LLC, a Delaware limited liability company, as lender (the
“Lender”).



     PRELIMINARY STATEMENTS:



     (1) The Borrowers and the Lender have entered into a Loan and Security Agreement dated as of
April 18, 2008 (the “Loan and Security Agreement”). Capitalized terms not otherwise
defined in this Amendment have the same meanings as specified in the Loan and Security Agreement.



     (2) The Borrowers and the Lender have agreed to amend the Loan and Security Agreement as
hereinafter set forth.



     SECTION 1. Amendments to the Loan and Security Agreement. The Loan and Security
Agreement is, effective as of the date hereof and subject to the satisfaction of the conditions
precedent set forth in Section 2 hereof, hereby amended as follows:



     (a) Part (a) of the definition of “Attributed Rate” in Schedule I is amended in full
to read as follows:



          “(a) With respect to Eligible Servicing Rights, 85%;”




     (b) The definition of “Commitment Amount” in Schedule I is amended in full to read as
follows:




“‘Commitment Amount’ means $1,200,000,000. The Borrowers may elect
to reduce the Commitment Amount in accordance with Section 2.10.”



     (c) Schedule II is replaced in its entirety by Schedule II attached hereto as
Exhibit A.



     SECTION 2. Conditions of Effectiveness. This Amendment shall become effective as of
the date first above written when, and only when, the Lender shall have received:



     (a) A copy of this Amendment, duly executed by the parties hereto; and



     (b) A certificate signed by a Responsible Officer of each Borrower stating that:



 









 






	 	(i)	 	The representations and warranties contained in
Section 4 hereof are correct on and as of the date of such
certificate as though made on and as of such date; and
	 
	 	(ii)	 	No event has occurred and is continuing that constitutes a Default.





     SECTION 3. Reaffirmation of Security Interest. Each Borrower hereby reaffirms and
hereby grants a lien on the Collateral (as such term is defined in the Loan and Security Agreement)
in favor of the Lender subject to all of the terms set forth in the Loan and Security Agreement, as
amended.



     SECTION 4. Representations and Warranties of the Borrower. Each Borrower represents
and warrants as follows:



     (a) It is a limited liability company duly organized or formed, validly existing and in good
standing under the laws of Delaware.



     (b) The execution, delivery and performance by it of this Amendment and the Loan and Security
Agreement, as amended hereby, and the consummation of the transactions contemplated hereby and
thereby will not conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice, lapse of time or both) a default under its organizational
documents, or any material indenture, loan agreement, mortgage, deed of trust, or other material
agreement or instrument to which it is a party or by which it is otherwise bound, or result in the
creation or imposition of any Lien upon any of its properties pursuant to the terms of any such
indenture, loan agreement, mortgage, deed of trust, or other agreement or instrument, other than
this Agreement, or violate any Legal Requirement applicable to it of any Governmental Authority
having jurisdiction over it or any of its properties if such violation, individually, or in the
aggregate, is reasonably likely to have a Material Adverse Effect.



     (c) No approval, consent, exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority or any other Person is necessary or required in connection
with execution, delivery or performance by it of this Amendment or the Loan and Security Agreement,
as amended hereby.



     (d) This Amendment has been duly executed and delivered by it. This Amendment and the Loan
and Security Agreement, as amended hereby, constitute, its legal, valid and binding obligations
enforceable against it in accordance with its respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement
of creditors’ rights generally and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.



     (e) There are no proceedings or investigations pending, or to the best of its knowledge
threatened in writing, against it before any court, regulatory body, administrative
agency, or other tribunal or governmental instrumentality (i) asserting the invalidity of any



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Facility Document, (ii) seeking to prevent the consummation of any of the transactions contemplated
by any Facility Document, or (iii) seeking any determination or ruling that could reasonably be
expected to have a Material Adverse Effect.



     SECTION 5. Reference to and Effect on the Loan Documents. (a) On and after the
effectiveness of this Amendment, each reference in the Loan and Security Agreement to “this
Agreement,” “hereunder,” “hereof” or words of like import referring to the Loan and Security
Agreement, and each reference in the Note and the other Facility Documents to “the Loan and
Security Agreement,” “thereunder,” “thereof” or words of like import referring to the Loan and
Security Agreement, shall mean and be a reference to the Loan and Security Agreement, as amended by
this Amendment.



     (b) The Loan and Security Agreement, the Guarantee, the Note and the other Facility Documents,
as specifically amended by this Amendment, are and shall continue to be in full force and effect
and are hereby in all respects ratified and confirmed.



     (c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of the Lender under any of
Facility Documents, nor constitute a waiver of any provision of any of the Facility Documents.



     SECTION 6. Execution in Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute but one
and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment
by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment.



     SECTION 7.  Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.



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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first above written.




	 	 	 	 	 
	 	GMAC LLC

a Delaware limited liability company

 	 
	 	By:  	/s/ David Walker
 	 
	 	 	Name:  	David Walker 	 
	 	 	Title:  	Group VP and Treasurer 	 
	 



	 	 	 	 	 
	 	RESIDENTIAL FUNDING COMPANY, LLC

a Delaware limited liability company

 	 
	 	By  	/s/ Melissa White
 	 
	 	 	Name:  	Melissa White 	 
	 	 	Title:  	Assistant Treasurer 	 
	 



	 	 	 	 	 
	 	GMAC MORTGAGE, LLC

a Delaware limited liability company

 	 
	 	By  	/s/ Melissa White
 	 
	 	 	Name:  	Melissa White 	 
	 	 	Title:  	Assistant Treasurer 	 
	 



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